Analysis: e-voting’s success rests on chain-of-custody issue

So many e-voting stories focus on the specter of "hacking," but there's …

The 2008 election cycle is turning out to be a bonanza for political junkies from across the ideological spectrum, as an open field and roller-coaster primaries in both major parties have combined to increase primary voter turnout to record levels. This massive turnout, which may well be a preview of what we can expect in November's contest, has functioned as a large-scale stress test on an electronic voting infrastructure that's fragmented, fragile, and still in flux.

As the year progresses, I'll be zeroing in on different aspects of electronic voting in a series of posts aimed at keeping you up to speed and preparing you to read the pre- and post-election press coverage with a critical eye. The first issue that I want to tackle in this post is fundamental for election integrity, and its importance is typically underestimated by reporters who are focused on the more spectacular "hacking"-related narratives that will probably be a persistent feature of America's election coverage from here on out. This issue is ballot chain of custody, and it's absolutely critical.

Chain of custody and burden of proof

In a criminal trial, the state must prove the defendant's guilt to the satisfaction of a jury; in an election, the state must prove its own innocence to the satisfaction of the public. Both scenarios place the burden of proof on the state, and in both of them the state's case will rest on evidence; that evidence must be beyond reproach.

In a nutshell, "chain of custody" is about establishing who has had their hands on some important piece of physical evidence that must not be tampered with. This could be evidence in a court case, or it could be evidence of voter intent, i.e. a marked ballot. If you can't firmly establish that only authorized, trusted parties have handled a ballot from the moment that it left the voter's hands and entered the lock-box, then you can't be certain that nobody tampered with that ballot to change its vote.

If at any point ballots are left either unattended or unsecured, then it's possible that someone could have tampered with them. The mere existence of that possibility precludes the establishment of a certain chain-of-custody—the two are mutually exclusive.

If the state can't demonstrate a secure chain of custody for the ballots in an election, then the public (if it's paying attention) can't have the level of confidence in the integrity of that election that it deserves to be able to have.

A crucial difference

There's one crucial difference between chain-of custody for ballots and chain-of-custody for forensic evidence: evidence only needs to be secured after a crime, but ballots, whether they're in paper form or in the form of memory cards that go into e-voting machines, have to be secured both before and after their use.

In the case of paper ballots, bad actors with access to blank ballots could mark them and then carry out a ballot stuffing attack, where they sneak a bunch of bogus ballots in with the legit ballots and alter the vote count. In cases where the vote is recorded electronically on memory cards that are inserted into an e-voting machine before an election and then removed afterwards, bad actors can slip malicious software onto the memory cards that alters the vote totals while the vote is still in progress. Either way, it's important for election officials to ensure that that blank paper ballots and blank memory cards stay blank until a qualified voter—and only a voter—marks them.

Chain of custody gone wrong: the case of New Hampshire

For a real-world case where the ballot chain-of-custody issue was a complete and unmitigated disaster, look no further than last month's New Hampshire state primaries. Bev Harris and her team of activists went to New Hampshire with cameras in hand, and they captured on video a perfect storm of arrogance, indifference, and incompetence on the part of New Hampshire's elections officials.

The videos are worth watching, and if you care about America they'll put a lump in your throat. In short, Harris found unsecured ballots, ballot boxes with "tamper-proof" tape that was anything but, ballots being transported by shady private contractors, and elections officials for whom "transparency" and "oversight" are completely alien concepts.

If the ballot chain of custody situation in the other 49 states is even one third as appalling as it is in New Hampshire, then we're in for quite a mess in the case of a close general election in November. I, for one, pray for a landslide blowout, because in an even remotely close election the prospects that state governments will be able to meet the burden of proof that the public will demand is passing dim.

Conclusions: watch the watchmen

If you're a member of the media who's covering the elections beat, then grill elections officials about chain of custody and report the results to the public. The "hacking" stories may sell papers and draw traffic, but chain-of-custody issues are just as critical. And if you're a concerned citizen, then get involved. Check out the links below, sign up to be an election observer, start worrying about pre-election ballot security right now, and on November 8 make sure your video camera is fully charged and ready to go.